Maxwell v. Mitchell et al
Filing
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ORDER signed by Magistrate Judge Craig M. Kellison on 02/23/16 ordering the court authorizes service on the following defendants: Mitchell and Hass. The clerk of the court shall issue a summons in a civil case and send plaintiff the summons along w ith a copy of the complaint. Plaintiff shall effect service of process with the court within the time provided in Federal Rule of Civil Procedure 4(m); and within 30 days of the date of this order, plaintiff shall show cause in writing why the City of Chico should not be dismissed as a defendant to this action. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANTHONY PAUL MAXWELL,
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No. 2:15-CV-0015-CMK-P
Plaintiff,
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vs.
ORDER
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RYON MITCHELL, et al.,
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Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1).
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The court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
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§ 1915A(a).
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Plaintiff names the following as defendants: (1) Ryon Mitchell; (2) Kevin Hass;
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and (3) the City of Chico. Plaintiff states that he drove himself to the emergency room after
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being stabbed in a Win-Co parking lot in Chico. According to plaintiff, someone at the hospital
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asked Ryon Mitchell, a City of Chico police officer, to move plaintiff’s car. Plaintiff states:
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Officer Mitchell retrieved the keys and stood over me shaking a
metal pill bottle attached to the key ring. Mitchell asked what was in the
bottle. Nothing plaintiff replied. Mitchell then unscrewed the bottle and
retrieved a small amount of an unknown substance stating: “Looks like
marijuana. I’m confiscating it, but don’t worry. You won’t be charged.”
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Plaintiff alleges that a felony arrest warrant was issued against him but later recalled after he
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appeared in Butte County Superior Court on criminal charges. Plaintiff states that the criminal
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case was later dismissed at the preliminary hearing.
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Next, plaintiff claims that defendant Hass, also a City of Chico police officer,
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noticed plaintiff’s car at the Matador Hotel and, believing an arrest warrant was outstanding,
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“appeared gun drawn looking down the sights, yelling ‘dive on the ground Chico PD.’” Plaintiff
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states that he was unable to get on the ground due to the wound suffered in the stabbing attack
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earlier, but that he stood in place and held his hand up. Plaintiff alleges that defendant Hass “ran
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up on Plaintiff and kicked Plaintiff in the lower abdomen causing Plaintiff to fall on the ground,
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at which time Plaintiff was hit several time.” According to plaintiff, he suffered “several hernias
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as a result of being kicked by Officer Hass.”
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The complaint appears to state a cognizable claim for relief pursuant to 42 U.S.C.
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§ 1983 and 28 U.S.C. § 1915A(b) as against defendants Mitchell and Hass. If the allegations are
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proven, plaintiff has a reasonable opportunity to prevail on the merits of this action. The court,
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therefore, finds that service is appropriate and will direct the Clerk of the Court to issue a
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summons form. Plaintiff is informed, however, that this action cannot proceed further until
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plaintiff completes service of process on defendants pursuant to Federal Rule of Civil Procedure
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4. Plaintiff is warned that failure to comply with this order may result in dismissal of the action.
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See Local Rule 110.
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The complaint, however, does not state a claim against defendant City of Chico.
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Municipalities and other local government units are among those “persons” to whom § 1983
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liability applies. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). Counties and
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municipal government officials are also “persons” for purposes of § 1983. See id. at 691; see
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also Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989). A local
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government unit, however, may not be held responsible for the acts of its employees or officials
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under a respondeat superior theory of liability. See Bd. of County Comm’rs v. Brown, 520 U.S.
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397, 403 (1997). Thus, municipal liability must rest on the actions of the municipality, and not
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of the actions of its employees or officers. See id. To assert municipal liability, therefore, the
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plaintiff must allege that the constitutional deprivation complained of resulted from a policy or
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custom of the municipality. See id. A claim of municipal liability under § 1983 is sufficient to
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withstand dismissal even if it is based on nothing more than bare allegations that an individual
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defendant’s conduct conformed to official policy, custom, or practice. See Karim-Panahi v. Los
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Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988).
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Here, plaintiff makes no allegations related to defendant City of Chico. Plaintiff
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will be directed to show cause why the City of Chico should not be dismissed. Plaintiff is once
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again warned that failure to comply with this order may result in dismissal of the City of Chico.
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Accordingly, IT IS HEREBY ORDERED that:
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1.
The court authorizes service on the following defendant(s):
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MITCHELL;
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HASS;
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2.
The Clerk of the Court shall issue a summons in a civil case and send
plaintiff the summons along with a copy of the complaint;
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3.
Plaintiff shall effect service of process and file proofs of service with the
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court within the time provided in Federal Rule of Civil Procedure 4(m); and
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Within 30 days of the date of this order, plaintiff shall show cause in
writing why the City of Chico should not be dismissed as a defendant to this action.
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DATED: February 23, 2016
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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